United States: Federal Court Vacates $228 Million Award Entered In First BIPA Trial, Finds Damages Are Discretionary And A Question For The Jury

Chicago, Ill. (July 7, 2023) – On June 30, 2023, an Illinois federal district court ruled on post-judgment motions in Rogers v. BNSF Railway Co. and vacated the $228 million damages award entered in the first Illinois Biometric Information Privacy Act (BIPA) case to proceed to trial.

Jury Verdict, Judgment, and Post-Judgment Motions

In October 2022, the jury found that BNSF had "recklessly or intentionally" violated BIPA 45,600 times by requiring truck drivers to use finger-scan technology when entering or exiting BNSF's Illinois facilities without abiding by BIPA's notice and consent provisions. After trial, the judge entered a single award of $5,000 for each of the 45,600 violations after determining that Section 20 of BIPA required an award of liquidated damages upon a finding of liability.

On June 30, 2023, the court vacated its damages award after hearing the parties' post-judgment motions. BNSF's motions included arguments that (1) there was insufficient evidence to sustain the jury's findings on "reckless or intentional" liability, (2) damages under BIPA are discretionary, not mandatory, (3) the $228 million award violated constitutional due process, and (4) federal law preempted BIPA as applied to BNSF.

Rogers also challenged parts of the judgment and award, arguing that (1) the jury's finding of 45,600 violations was erroneous and should have totaled 136,800 because truck drivers were required to register three of their fingers before entering or exiting BNSF's facilities, (2) the court should have allowed Rogers to present a "per scan" damages theory at trial and argue to the jury that BNSF committed 1,171,608 statutory violations, and (3) the court erred in failing to enter pre-judgment interest on the $228 million damages award.

Court's Decision on Post-Judgment Motions

In a well-reasoned memorandum opinion and order, the district court denied all of the motions except BNSF's motion that damages under BIPA were discretionary. In sum, the court upheld the jury's findings on liability, denied Rogers' request to pursue a "per scan" damages theory, found that prejudgment interest was not available under BIPA, and upheld its decision denying BNSF's summary judgment motion on federal preemption, though it noted that BNSF had preserved this issue for appeal. Critically, however, the court granted BNSF's request for a new jury trial on damages.

In vacating the damages award, the Rogers court found no basis to "disregard the Illinois Supreme Court's statement" in Cothron v. White Castle, Inc. that the Illinois legislature "chose to make damages discretionary rather than mandatory under [BIPA]." Moreover, because damages are discretionary, the court found "that a damages award after a finding of liability is a question for the jury" and concluded that "BNSF is entitled to have a jury determine the appropriate amount of damages." Having granted BNSF's request for a new trial on damages, the court declined to address its constitutionality arguments.

After addressing BNSF's motions, the court denied Rogers' request to proceed on a "per scan" damages theory at the new jury trial. BNSF had prevailed on this argument in pre-trial motions after arguing that Rogers failed to adequately disclose his "per scan" damages theory and supporting evidence during discovery. The court found that BNSF would be prejudiced by Rogers' late disclosure, finding that even if BNSF was aware that he planned to request "per scan" damages, "there is a significant difference between 'is a legally theory viable' and 'the evidence that Rogers was going to use and the number he was going to come up with based on that legal theory.'" Rogers' failure to disclose the number of claimed violations and methodology to calculate damages thus precluded him from pursuing the theory at trial.

Finally, the court found no basis in the statutory text of BIPA to award prejudgment interest as requested by Rogers. Noting that only the Illinois Interest Act or an agreement between the parties provides for an award of prejudgment interest, the court rejected Rogers' argument that BNSF had "vexatiously or unreasonably" delayed payments of liquidated damages under BIPA because there was an "honest dispute" regarding BNSF's legal obligations to members of the class. The court clarified that, even if it had upheld its damages award, Rogers would not have been entitled to prejudgment interest.

Implications of the Rogers Decision

The Rogers decision solidifies the Supreme Court of Illinois' statements in Cothron and a prior Illinois appellate court's statements in Watson v. Legacy Healthcare Fin. Servs., 2021 IL App 210279. These statements provide that damages under BIPA are discretionary, not mandatory, and that a jury should hear all evidence for and against entering an award for statutory violations that result in no real world harm. The Cothron decision remains stayed in light of the petition for re-hearing filed in March 2023, which is likely to be ruled on when the court reconvenes after its summer recess. In the meantime, the Rogers court concluded its opinion by setting the case "for a telephonic status hearing on July 7, 2023 at 9:05 a.m. to set a trial date and discuss the possibility of settlement."

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